The archaic common law defence “reasonable chastisement” of children finally vanquished to the realms of history

“Whether it is slapping or tapping, shoving or pushing, hitting or beating, the invisible line between “reasonable chastisement” and simply physical violence against children has finally been removed.”

“I was appointed to the Seanad by An Taoiseach Enda Kenny back in 2011 on the basis of my children’s rights work. One of the first objectives I set for my tenure was for Ireland to repeal the defence of reasonable chastisement. On 23 September 2015, I tabled an amendment to the Children First Bill to this effect. Following an anxious wait until today, an historic day for children’s rights in Ireland and for me personally, through a joint amendment with Government we have successfully amended the Children First Bill to secure the abolition of the defence of reasonable chastisement.”

“There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.”

Minister, you are always welcome to the Seanad but I have to admit that today you are particularly welcome.

One of the first objectives I set when I became a member of the Seanad in 2011 was for Ireland to repeal the defence of reasonable chastisement. When the Seanad took Committee Stage of the Children First Bill on 23 September I tabled an amendment, with thanks to the expert help of Dr Fergus Ryan, to the same purpose as the amendment before us today. You said “If I have my way we will have this defence of “reasonable chastisement” removed from the Statute Book.”

And here we are today. Minister, I am extremely aware and thankful for all the work done by you personally, by officials and advisors across Government cooperating and working together to bring about the amendment tabled here before us. I would like to extend my particular thanks to the officials of the Department of Children and Youth Affairs. I would also like to thank my Assistant and Researcher Amy McArdle, for all her work and support. I was also heartened at Committee Stage to receive cross party and independents’ support. Thank you.

On 23 September I cited a number of international and national experts and I don’t intend to repeat myself today but ask that my words at Committee Stage be included in any documenting of how Ireland brought about the abolition of the defence of reasonable chastisement. Over the years there have been notable voices to the fore calling for the Ireland to take this step.

Of special note I must thank:

the Children’s Rights Alliance, in particular Tanya Ward and Maria Corbett who have been steadfast in their support and in ensuring the support of a wide range of children and youth organisations;

the ISPCC, driven by the experience of children calling into their ChildLine service, have always prioritised ending a culture of violence against children in Ireland.

the Special Rapporteur on Child Protection, Professor Geoffrey Shannon who has, through his reports, repeatedly called on us as legislators to repeal the defence of reasonable chastisement.

For the global leadership they have provided at an International level I want to thank :

Marta Santos Pais, Special Representative of the Secretary General on Violence against Children;

Peter Newell of the Global Initiative to End All Corporal Punishment of Children;

and Ireland’s academics who have shone a light on Ireland’s international obligations, in particular Prof Ursula Kilkelly, UCC.

I also must thank Jenny and Michael Hassett, my Mum and Dad. Since 23 September I have had a lot of time to reflect and probe why I am so passionate about this issue. It is of course rooted in my own childhood. My memories brought me back to a particular primary school teacher who would on occasion whack someone in our class across the ears with a ruler. I remember telling my Mum and she said that if I was ever hit I was to stand up calmly, walk out of the class, go to the office of the school secretary and ask for my parents to be called to come and collect me. I was lucky. My parents were ‘ahead of their time’, they respected me as an independent rights holder. Thanks Mum for being here today to share this momentous occasion.

Why do we as a society accept that we even debate if and when it is okay to hit someone? Let alone when that someone is smaller than us and probably doesn’t understand why they are being hit? Very often when we discuss the issue of corporal punishment, violence against children or so called ‘slapping’ you can almost feel an invisible line appear in people’s heads about their tolerance level. They say, “you know I am only talking about a tap not a thump, a slap not a belt, a smack not a whack”. And of course this issue is wrapped up in how we were raised – all too often the knee-jerk reaction “it never did me any harm” is heard. I would add “it never did you any good either”!

This invisible line is extremely subjective and it leaves children vulnerable. When someone hits a child it is not from a rational place. The decision is made in a heightened emotional state, when we are stressed, when we are tired and let’s face it least able to engage sound and reasoned judgement. The invisible line gets blurred. In extreme cases it gets rubbed out completely.One way or the other, the existence of the invisible line means children are all too often exposed to an escalation of violence.

The excuse “I got a terrible fright when she ran out on the road and so I just hit her to show how wrong it is” is used in relation to children. We all get frights in our life but my first reaction is not to hit someone – so why do we culturally accept that it is okay when it is a child? A caller to the Last Word on TodayFM summed it up by saying “my Grandmother has Alzheimer’s and she is as likely to walk out into traffic or harm herself. Should I use that as a reason to slap her?”

Of course I understand the importance of supporting parents in the vital role they play in their child’s life. We need to ensure parents have access to supports and resources when they need them. We know that the majority of parents in Ireland already believe that we have a ban on corporal punishment. However, I know that some parents are anxious about this change in the law and I would like to reassure them that we all want the best for their children, for the children of Ireland. To this end, I would like to take this moment to thank Laura Haugh of Mummy pages for their unequivocal support of this amendment.

I would also like to point to an excellent book for any parents who are anxious, developed by a leading advocate in this area, Paul Gilligan. His book “Raising Emotionally Healthy Children” is a great resource that provides lots of advice and support.

By abolishing the defence of reasonable chastisement we are giving life to the Children’s Amendment in our Constitution, Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights. We know that corporal punishment:

Can cause serious harm to children;

Teaches children that violence is an acceptable way of solving conflicts;

Is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;

Makes it more difficult to protect children from severe abuse if some forms of violence are legitimate.

With this amendment today we are ensuring that all citizens are equal in the eyes of the law.

This ancient defence of “reasonable chastisement” is not an Irish invention; it came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world. In England, Wales and Northern Ireland the “reasonable punishment” defence still allows parents and some other carers to justify common assault on children; in Scotland there is another variation – the defence of “justifiable assault”.

In this action being taken today, the Government is putting children first and providing leadership that will hopefully give confidence to the Government at Westminster, the devolved UK administrations and other countries across the globe to discard these archaic and disreputable defences and give full respect to children’s dignity.

We will be the 20th EU Member State to effectively ban corporal punishment in our jurisdiction and in doing so I hope the remaining European Governments will follow. Irish law is being brought into step with parents, children’s rights advocates and international best practice. With this amendment we have a way to unite and agree that all citizens are equal.

There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.

Amendment

In page 5, line 12, to delete “and to provide for related matters.” and substitute the following:

“to provide for the abolition of the common law defence of reasonable chastisement and, for that purpose, to amend the Non-Fatal Offences Against the Person Act 1997; and to provide for related matters.”.

—Government & Senator Jillian van Turnhout.

In page 20, after line 21, to insert the following:

“PART 5

MISCELLANEOUS

Abolition of defence of reasonable chastisement

The Non-Fatal Offences Against the Person Act 1997 is amended by the insertion of the following section after section 24:

“24A. (1) The common law defence of reasonable chastisement is abolished.

(2) Subsection (1) shall not apply in respect of proceedings brought against a person for an offence consisting in whole or in part of any act done by the person before the commencement of section 28 of the Children First Act 2015, whether those proceedings were brought before, on or after such commencement.

Children First Committee Stage with the Minister for Children and Youth Affairs, James Reilly TD, Wednesday 23 September 2015

In page 5, between lines 27 and 28, insert the following –““Emotional abuse” means behaviour (including an omission to behave in a particular manner) that significantly and seriously deprives a child of his or her developmental need for affection, approval, consistency and security and, without prejudice to the generality of the foregoing, includes –
(i) the imposition of negative attributes on a child, expressed by persistent criticism, sarcasm, hostility or blaming;
(ii) conditional parenting in which the level of care shown to a child is made contingent on his or her behaviours or actions;
(iii) emotional unavailability of the child’s parent or carer;
(iv) unresponsiveness of the parent or carer or inconsistent or inappropriate expectations of the child;
(v) premature imposition of responsibility on the child;
(vi) unrealistic or inappropriate expectations of the child’s capacity to understand something or to behave and control himself or herself in a certain way;
(vii) under- or over-protection of the child;
(viii) failure to show interest in, or provide age-appropriate opportunities for, the child’s cognitive and emotional development;
(ix) use of unreasonable or over-harsh disciplinary measures;
(x) exposure to domestic violence; and
(xi) exposure to inappropriate or abusive material through new technology,
provided that such behaviour or omission to behave in a particular manner results in or is likely to result in significant and serious injury to the emotional, social or psychological welfare of the child.”

In page 6, delete lines 12 and 13 and replace with the following –“neglect” means, in relation to a child,
(i) to deprive the child of adequate food, warmth, clothing, hygiene, supervision, safety or medical care; or
(ii) to deprive the child of appropriate emotional and psychological support or to subject the child (or allow or cause the child to be subjected)
to emotional abuse to the extent that the child’s physical, social, intellectual, psychological or emotional development is significantly and seriously affected.”

Minister, I move Amendment 1

It is extremely important that we identify and name ‘emotional abuse’ as a stand-alone form of abuse which, where sustained and ongoing, has a devastating effect on children’s lives and through into adulthood.

Emotional abuse is often the first abuse to occur and then escalates into other forms of abuse. We talk at length about the importance of early intervention and should not underestimate the message we are sending by excluding emotional abuse. What message are we giving? Emotional abuse is about control and power.

Barring and Protection Order – cannot use abusive language – we are able to define this in law. Why is an adult different to a child?

Case – parent telling child every day that they are “born angry” and then wonder why the child at 12 presents with an anger problem.

In the Bill, ‘harm’ includes ‘neglect’. This amendment (amendments 1 and 2 read together), alters the definition of neglect to include emotional abuse, though only where the emotional abuse significantly and seriously injures the emotional, social or psychological welfare of the child.

The definition of ‘emotional abuse’ is largely drawn from its definition in the Children First Guidance, subject to the caveat that behaviour or omission to behave will not be treated as emotional abuse for the purpose of this Act unless it has a significant and serious impact on the child.

This is a relatively high threshold, which is designed to ensure that minor infractions or subjective differences in relation to best practice in parenting do not become subject of investigation.

The amendment is clearly framed so that only behaviour or omissions to behave that have a significant and serious effect on the emotional, social or psychological welfare of the child are deemed to constitute emotional abuse.

The examples given at 1 through 11 of Amendment 1 are not exhaustive. They are without prejudice to the generality of the substantive definition and are drawn directly from Children First.

It is important to note that a single or isolated instance of any of these examples may not be enough in itself to constitute emotional abuse in the sense in which it is defined in the amendment.

These examples may nonetheless be useful in helping to identify emotional abuse though, again, they are subject to the caveat that the effects of the behaviour or omission to behave must be serious.

“28. The Non-Fatal Offences Against the Person Act 1997 is amended by the substitution for section 24 of the following –

“Abolition of common law rules in respect of immunity from criminal liability for punishing a child.

Any rule of law under which any person is immune from criminal liability in respect of physical chastisement of a child, whether the person is a parent or guardian of the child, a person with custody of the child either temporarily or indefinitely, a teacher, or a person in loco parentis in respect of the child either temporarily or indefinitely, is hereby abolished.””

I would like to begin by acknowledging and thanking Peter Newell of Global Initiative to End All Corporal Punishment of Children, which promotes the universal prohibition and elimination of corporal punishment.

In November 2012, the people of Ireland voted to enshrine the protection of children as individual rights holders into the Irish Constitution. Following a defeated Supreme Court appeal, it was signed into law on 28 April 2015. Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

What I am proposing in this amendment is to ensure that all citizens are equal in the eyes of the law.

Why do we still believe it is acceptable for corporal punishment to be in our laws?

What is corporal punishment? The Committee on the Rights of the Child defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading.

Adults have a talent for inventing euphemisms to make them feel more comfortable while they inflict pain and humiliation, such as spanking or smacking. The truth is that, for a child, all of this is violence, and if it were directed at an adult it would constitute criminal assault.

Minister, I am very conscious that often people believe this issue is a judgement on how they were raised. I would like to take this opportunity to welcome my mother Jenny to the gallery and she will concur that I was raised with the “you’re not too old for the wooden spoon” ringing in my ears. Thankfully she never used it – indeed only in Ireland is the wooden spoon not seen solely as a kitchen utensil but as a weapon. Times have moved on and our understanding of the effects of corporal punishment on children has increased.

There are many other good reasons to ban corporal punishment:

It can cause serious harm to children;

It teaches children that violence is an acceptable way of solving conflicts;

It is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;

It is more difficult to protect children from severe abuse if some forms of violence are legitimate.

In tandem Minister, we must provide parents with sufficient support in bringing up their children, including through educating parents about good parenting skills.

Minister, 46 states, including 28 in the wider Europe, have prohibited all corporal punishment including in the family and another 51 states have clearly and publicly committed to achieve a full ban.

Ireland has been found to be in violation of the European Social Charter (by the Council of Europe’s European Committee of Social Rights) by failing to ban all corporal punishment against children. However, I hope the Government will find itself in a position to accept this amendment because it is the right thing to do. We must uphold and protect Children’s Rights.

Mr. Janusz Korczak, a Polish-Jewish paediatrician, educationalist and children’s author, wrote in his 1925 book The Child’s Right to Respect: “In what extraordinary circumstances would one dare to push, hit or tug an adult? And yet it is considered so routine and harmless to give a child a tap or stinging smack or to grab it by the arm. The feeling of powerlessness creates respect for power. Not only adults but anyone who is older and stronger can cruelly demonstrate their displeasure, back up their words with force, demand obedience and abuse the child without being punished. We set an example that fosters contempt for the weak. This is bad parenting and sets a bad precedent.”

Sweden brought in their laws in 1979 – now 36 years ago. In a publication to mark the 30 years since Sweden’s abolition of corporal punishment their then Minister Maria Larsson wrote: “When violence is used against children, their confidence in the adult world is damaged. And there is good reason to believe that if this violence is exercised by the child’s own parent, or by someone else close to them, the damage is greater.”

Since 2006, the EU has emphasised the promotion and protection of children’s rights as a priority issue. The European Parliament, in a 2009 resolution on the situation of fundamental rights across the EU 2004-2008, called for a total ban on corporal punishment in all Member States. Again in November 2014, the Parliament adopted a resolution calling on Member States to uphold their obligations and combat any form of violence against children “including by formally prohibiting and sanctioning corporal punishment against children”.

Recently, our Permanent Representative to the United Nations in New York, David Donoghue, said that Ireland had a central role in achieving sustainable development as co-facilitators of the UN negotiations together with Kenya on “Transforming our world: the 2030 Agenda for Sustainable Development”.

I note SDG 16 to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels and particularly SDG 16.2 therein to end abuse, exploitation, trafficking and all forms of violence against and torture of children.

“The Children’s Rights Alliance unites over a 100 organisation working with children and their families across the country. Since our establishment in 1995 we have repeatedly called for the removal from Irish law of the defence of reasonable chastisement of children.

Research is clear that corporal punishment has no benefits and carries causes children physical and psychological harm and can lead to short and long-term effects on their safety, health and development. There is no justification for corporal punishment and it is clearly at odds with Article 42A of the Constitution which “recognises and affirms the […] rights of all children” and commits to protect and vindicate those rights by its laws. Children have an absolute right to be protected from harm and abuse under the UN Convention on the Rights of the Child which Ireland ratified in 1992, there are no exceptions.

This coming January, Ireland’s progress on children’s rights will be examined by the UN Committee on the Rights of the Child, the Committee has criticised Ireland’s position on corporal punishment in 1998 and 2006 and are likely to do so again in 2016. The Children’s Rights Alliance has been leading the civil society engagement with the UN Committee and has prioritised corporal punishment as a key concern. There is no reason to delay, Ireland has a moral and legal duty to protection children from corporal punishment.”

Grainia Long, Chief Executive, ISPCC:

“As the national child protection charity, the ISPCC has long supported a ban on physical punishment of children. Through our national listening service, Childline, we hear on a daily basis the impact of violence towards children. Last year we responded to nearly 37,000 contacts from children regarding abuse or welfare, and many were from children who were anxious, traumatised and scared in their own home, due to violence.

We strongly support the amendment to remove the defence of reasonable chastisement, and believes that it meets the spirit and intent of the Children First legislation. Whatever the circumstance, there is no reason why the law should permit a defence of hurt or violence towards a child. Far too often, the debate centres on the needs or preferences of parents, rather than the rights of the child. The recent change to our constitution following the Children’s Referendum requires us to think very differently and put children at the heart of our considerations. Seanad members therefore have a long overdue and timely opportunity to place in law the right of a child to be safe in their own home, and we hope this opportunity will be grasped, in the best interests of children.”

Laura Haugh, mum-in-residence / spokesperson for MummyPages.ie :

“MummyPages.ie is Ireland’s largest online parenting community, and our members wholeheartedly support the campaign to repeal the defence of reasonable chastisement by parents and childminders (up to 3 children) in Irish law.

Slapping another person, and especially a vulnerable child is wrong in all circumstances. Firstly, allowing slapping by a caregiver to a child under the term ‘reasonable chastisement’, is legalising physical violence to another person and a form of child abuse. It demonstrates that it’s ok for a person to hit another person and indeed that it’s ok for a bigger or stronger person to hit a smaller or weaker person. This kind of behaviour can lead to intense abuse in the home for the child that does not learn quickly from the ‘reasonable chastisement’ and it is at complete odds with what is acceptable in today’s adult society or indeed the school playground.

Initially the child is hurt by the physical action and emotional breakdown of trust between parent and child that they forget what they have done wrong. What you want in effective discipline is for the child to understand what they have done wrong, and the consequences of their actions to others. You want the child to feel remorse but ultimately to still believe that they are a person of value, slapping does not promote this.

The main principle in promoting desirable behaviour is for the child to feel good and therefore be good. This is why regular positive affirmations of good behaviour is a much more effective tool to maintain this type of behaviour than anything else.

It is now well researched that when responding to an incident with a child that requires discipline; tuning into the child to understand exactly why they misbehaved, helping them to realise how their behaviour might affect others, and consistent follow-through with age appropriate consequences is much more effective than physical chastisement, no matter how ‘reasonable’ it is perceived.”

Minister, I am conscious of the comments made in February this year by Pope Francis.

For me it was encouraging to see the response by both the Vatican and indeed at national level.

I wish to cite from the letter written by Mary McAleese to the Irish Times, which noted that the Vatican was a signatory to the UN Convention on the Rights of the Child and that the relevant Treaty Monitoring Body, the Committee on the Rights of the Child, wants all corporal punishment of children to be banned.

She added “In submissions to that Committee last year, the Vatican said it did not promote corporal punishment, citing “respect for the inviolability of physical life and the integrity of the person…”.

The Vatican responded by appointing Peter Saunders, Founder of the National Association for People Abused in Childhood, UK, to the The Papal Commission for the protection of minors and was asked to lead on the Commission’s non-violence against children working group.

I contacted Peter Saunders earlier today and he advised me that the members of the working group are unanimous in their position that violence or reasonable chastisement of children is never justifiable.

Irish abuse survivor Marie Collins is also a member The Papal Commission for the protection of minors. In discussions with both Marie Collins and Peter Saunders they are extremely supportive of Ireland updating its laws to bring into effect a ban on corporal punishment in Ireland.

Marta Santos Pais, Special Representative of the Secretary General on Violence against Children, advocates that corporal punishment can be prevented “[b]y supporting caregivers in the use of non-violent child rearing practices; by promoting advocacy and social mobilisation to safeguard children’s dignity and physical integrity; by reforming laws to introduce a clear ban of all forms of violence including corporal punishment, we can make a real difference in the life of children, all children, everywhere and at all times,”

Irish law is now out of step with parents, children’s rights advocates and international best practice. With this amendment we have a way to unite and agree that all citizens are equal.

I want to reiterate my support for the Bill. The amalgamation of the three detention schools on the Oberstown site into 1 legal entity is essential to the success of our children detention system.

I look forward to the publication of the Prisons Bill, which will facilitate the complete closure of St Pats.

Ending the detention of children in the adult prison system in Ireland is a hugely significant improvement, albeit long overdue, in the promotion and protection of children’s rights in Ireland.

However, the change of policy whereby 16 and 17 year olds are being remanded and committed to the new facility will not be without its challenges.

In fact they are pre-empted in numerous places in the St. Pat’s Visiting Committee Report for 2014.

The reality is that the new 16 and particularly 17 year old cohort are physically bigger, present with more challenging behaviour, are detained on more serious charges (indeed Minister I think it would be very useful if we tracking any trends and changes in the profile of offences children are being remanded and committed to detention for), and I understand are changing the dynamic between staff and the younger children in the units, whereby they cannot be seen to be complying/buying in with the programme.

We need a risk assessment and specific and ongoing training for staff to deal with these new challenges.

I warmly welcome the arrival of the Bill to the Seanad (15 months since first introduced to the Dáil in April 2014).

I actively took part in the Pre-Legislative Scrutiny by the Health and Children Committee who produced its report in July 2012. I would like to express my thanks to all the organisations and individuals who provided their expert insight.

I would particularly like to thank the Children’s Rights Alliance, ISPCC, Barnardos and EPIC for giving me their updated views on the legislation which has significantly changed, indeed improved, as it has progressed. I am hoping that the Seanad can make some additional changes to further ensure it will achieve its stated aim.

This legislation is urgently needed and long overdue to put child welfare and protection on a statutory footing-solidify good intentions.

It is essential that we get this right.

Overarching concerns

Before I consider the legislation before us I would briefly like to stress the importance of resourcing of the Child and Family Agency. The Agency continues to be overstretched due to insufficient budget allocation and the roll out of this Bill will most certainly result in additional workload. It is essential that resources, both financial and personnel, are made available to ensure the implementation of the national policies on the ground. (National Review of Cases Awaiting Allocation 15 July 2014).

There is a fear Minister that the ‘system will be overwhelmed’ when this Bill is brought into law. I think the more pressing fear is that there are overwhelming numbers of children at risk of harm and abuse throughout the country. We need this legislation to shine a bright spotlight and ensure that there is no hiding place for vile abusers. It is our job to ensure the system works come hell or high water.

I am also concerned about the preparedness of other State agencies imperative to the success of Children First. For example, the Department of Education or the HSE.

There is much to welcome in this Bill but given the time contraints I will outline area I believe need to be further addressed as the Bill progresses through the Seanad.

Corporal Punishment

Minister, I agree with the Council of Europe and echo its call for a “culture of zero tolerance of violence towards children”.

It is for this reason that I have advised successive Ministers for Children and Youth Affairs of my intention to table an amendment to this Bill to repeal the defence of reasonable chastisement.

I look forward to tabling the amendment I have put forward when we take Committee Stage of this Bill.

Gender Recognition for Transgender Children under the age of 16

Minister, I know you are aware of my disappointment that children are not included in the Gender Recognition Act.

Last Wednesday Minister Humphries stood where you stand now Minister Reilly, and in response to my speech stated that this was now an issue for your department. He said, and I quote, “I would be quite happy for the Minister, Deputy Reilly, to lead on this, because he is the Minister for Children and Youth Affairs, and that Department has a wider remit than the Department of Social Protection on this issue.”

Therefore Minister Reilly, I ask you to include within the Children First legislation a provision to amend the Gender Recognition Act so that the exemption process for 16-18 is depathologised in a manner similar to the application process for adults and to include the creation of a process for interim gender recognition for the under 16s so that the rights of children are fully realised in that process.

Emotional Abuse

At the Committee hearings the majority of organisations and experts said “Emotional abuse” needs to be included in the definition of welfare. Emotional abuse is a form of neglect and should be explicitly stated as such. We need to amend the Bill to include it as part of the definitions of its laws.

Schedule 3: Offences for purposes of Paragraph (A) of Definition of “Sexual Abuse” in Section 2

I will be seeking to amend the current term “child pornography” and replace it the more apt and reflective descriptor “child sexual abuse material (CSAM)”.

According to Interpol:

“A sexual image of a child is “abuse” or “exploitation” and should never be described as “pornography”. Pornography is a term used for adults engaging in consensual sexual acts distributed (mostly) legally to the general public for their sexual pleasure. Child abuse images are not…”

Minister I have been saying this since first tabling a motion on Blocking Child Abuse Material on the Internet back in February 2012 and later in my Report onEffective Strategies to Tackle Online Child Abuse Material in September 2013, a child sexual abuse image is a crime scene, a digital record of sexual abuse being perpetrated against a real child in the real world and I will be seeking to have “child pornography” in this Bill and across our statute books amended to “child sexual abuse material” to better reflect the seriousness of the offence.

Child safeguarding statements

In Section 11, subsection 5 suggests that the Agency can request a copy of the relevant service provider’s child safeguarding statement. This enables the Agency to monitor compliance which is welcome. However Section 12(1)(b) doesn’t specify how quickly the Agency can be furnished (“within such period as may be specified in the notice). This is rather weak- the Agency could be waiting for weeks, perhaps longer for a statement to be sent. This should be tightened up.

I am aware that the Minister may issue regulations and Guidelines for the purpose of providing practical guidance on how to adhere to the Bill. But in the absence of a firm commitment that this will be done how will organisations and mandated people be fully aware of their new duties such as drafting the child safeguarding statement?

Also on Section 11(5), it specifies that the child safeguarding statement should be made available to the public on request. I am aware that subsection 6 calls for it to be displayed prominently. I ask why only on request? Surely we want all organisations to be open and transparent about the protection of children? I believe we should be asking for statements to be publicly available (online) as a matter of course?

Non-compliance Register

13(5) why is the register of non-compliance only available to the public for inspection at reasonable times? One of the best incentives for compliance would be a public list on the Agency website of organisations who are on the register of non-compliance. This bill needs to change the culture of services for children in Ireland to one of openness and transparency.

Right of Appeal

12(8) A right of appeal is critical, but should the avenue of appeal not be proportionate and remain within the Agency? If it goes to the District Court, it’ll could be tied up for months/years, and I don’t believe anyone wishes safeguarding children to be caught in court delays.

Childminders

Childminders are still exempt from the provisions of the Bill. Only those providing an early years service under the meaning of the Child Care Act 1991 are included (i.e. those looking after 4 or more children (excluding their own)). This is a serious omission given the number of children placed in the care of childminders. We omitted them from the National Vetting Bureau Act and I question why they are not included in the scope of the Bill.

Conclusion

I will be bringing forward amendments on the points I have raised today at Committee Stage. I will of course given further consideration to the Children First Bill during the recess and look forward to working with you Minister to ensure the Bill achieves it stated aim.

As always, the Minister of State is welcome to the House. I thank the Tánaiste for her commitment to the issue of gender recognition and thank the Minister of State for the energetic and robust debates we have had here in the Chamber and outside. I join other Members in welcoming the distinguished guests who have joined us here today, in particular Dr Lydia Foy and Michael Farrell. As I look at each face in the Visitors’ Gallery and think of the journey I have been on, I note that I did not know the majority of these people a few years ago, but now I feel I know them as friends. They have had to share their life stories with me for me to understand what we are debating here today and see the importance of today. That says a great deal. I have met some really amazing and brilliant people.

As the Minister of State knows, I have met many parents and children directly affected by this issue. While I am really happy today and recognise that is a great day, it is a bittersweet moment for me. It brings me back to my childhood when teams were being picked. There is a team getting on the human rights bus that is going. They are the adults and they are going to get it but the children did not get picked. That feeling of children being left out in the cold…yet again… makes it very difficult for me again today that we did not do anything for children, even though we had that opportunity. As we meet today, young people organised by TENI are meeting on the issue. BelongTo has a group of children meeting on this very issue. It is not that these children do not exist; they do. The Minister of State and I have met the parents and we know the real issues they face.

I will not go back over and rehearse every issue, but there have been developments since we debated the issue in the House in February. The calls I have made were informed and very much supported by organisations such as TENI and BeLonG To but also by the ISPCC, Children’s Rights Alliance, NYCI, SpunOut, Epic, Amnesty and the USI, just to name a few. Indeed, at its parliamentary assembly, the Council of Europe issued a resolution on discrimination against transgender people in Europe and said we needed to ensure that the best interests of the child are a primary consideration in all decisions concerning children. This is on transgender people; I am not picking something out of place. Indeed, since we have been debating the matter, Malta has passed gender identity, gender expression and sex characteristics legislation which ensures that children are free to live as they wish and are only required at the age of 14 to provide a gender for their birth certificate. In Norway, the Government has proposed legislation for pre-legislative scrutiny, not some independent Senator, to look at gender recognition from age seven. I welcome the commitment the Minister of State made in February to have the roundtable among education partners and I welcome the fact that one meeting has happened, but it is only one meeting. No education partners have been contacted on the issue of transgender children. We will face September again and there will be children who cannot live as they wish and go to the schools they wish to attend because they are being actively blocked.

Much has been made of the marriage equality referendum, which was a joyous and tremendous day, but there was also the children’s referendum which took two years for the Supreme Court to clear. That is the lens we also need to be looking at. We need to ensure that our legislation is also looking at that lens. The Government’s national policy framework for children and young people, Better Outcomes, Brighter Futures, is a whole-of-government document, not just one relating to the Department of Children and Youth Affairs. It very clearly sets out that the development of laws, policies and services should take into account the needs, rights and best interests of children and young people. It says that efforts should be made to involve children and young people in policy and decision-making processes. While that is Government policy, we saw in this process that children were excluded from the debate at the pre-legislative scrutiny stage. I have gone over my notes to confirm that. There was no good reason for it. I have gone back over the e-mails and the Acting Clerk of the Dáil has confirmed that they should have been allowed to give testimony at those committee hearings, but were not. We did not allow their voices to be heard, and we should not have done that. Other committees allow children to appear before them.
As I said, the best interests of the child should be our paramount consideration, taking account of the views of the child and the evolving capacity of the child. I proposed an interim gender recognition certificate where everybody is ad idem, that is, the parents, the child and an independent person, be that the Minister, a general practitioner or a court. Obviously, that was not successful. It was brought forward again in the Dáil. That led me to read the debates in the Dáil on Second and Report Stages, in particular. It was noticeable that Members of all parties and none raised the issue of children and the importance of including children in the Gender Recognition Bill. There was one exception, the Labour Party. Its Members did not, so perhaps it is Labour Party policy. I do not understand. I have read through all of the transcripts and no Member from the Labour Party raised this issue. I am still at a loss. The European Region of the International Lesbian and Gay Association gave really compelling testimony before the 29th Human Rights Council. Obviously, it welcomed what we are doing in Ireland but also noted that there was no process for legal recognition of minors under 16 years of age. These children exist and they deserve protection. A parent of a six year old trans girl said: “I just want to keep this child alive. I have a happy child now, why end up with a dead child? It’s important that she gets documents that reflect her gender.”

The difficulty for me, to which I have not received a satisfactory answer, is relevant to the court case S. v. An Bord Uchtála in 2009. The case involved an intersex child born abroad, who had been registered as female at birth. The judge made an order to allow an amendment of the register of foreign adoptions so that the child’s paperwork would reflect his gender of rearing as a boy and enable him to be enrolled in the local boy’s school. The difficulty is that because this Bill excludes children, are we saying to the courts that we do not want them to interfere or do anything on children? We are closing the door on this. As a legislator, I believe we are sending a clear message to children that we will not talk about gender recognition. That is a problem for me. I am also worried about one of the amendments from the Dáil regarding passports. Again, I have dealt with some cases where children have got their gender changed, not on their birth certificate but on their passport. This amendment will not allow that to happen. Even more children have been squeezed out of this. There are four to five children a year who will not now be able to get a passport in the gender they wish because we have tightened the knot again and really made sure that children are firmly outside the room when it comes to gender recognition.

In conclusion, the Minister for Children and Youth Affairs wrote to the Tánaiste and Minister for Social Protection and proposed written amendments. I appreciate that she did not feel she was in a position to accept those amendments. Is the Minister saying that this is now under the remit of the Minister for Children and Youth Affairs? If it is, I will table amendments to the Children First Bill. This must be made clear because I do not wish to be told when we debate the Children First Bill that it should have been done in the Gender Recognition Bill or that it should be done by the Minister for Social Protection. Will the Minister clearly state whether this is in the remit of the Minister for Children and Youth Affairs? When will the meeting with the education partners take place? I am not asking for an exact date, but a timeframe for when it will take place.

One of the proposals sent by the Minister for Children and Youth Affairs was that we would explicitly state that children and young people would be included in the strategic review. Will the Minister give a firm commitment on that? I do not wish to be told two years hence: “Children are not in the Bill so how can one strategically review children if they are not in the Bill?” I wish to be told clearly that this issue will not be left behind. It is a joyous day for adults, but there are children whom I have met and to whom we have said: “Go sit in the corner; we are not ready to deal with this yet.” In fact, we have slammed the door.

Can the Minister provide an exact timetable for the progress of the Government’s Adoption (Tracing and Information) Bill and advise what is hampering the progression of the Adoption (Identity and Information) Bill 2014 into the Dáil, following the completion of all stages in the Seanad on 18 February 2015 with support from all parties.

My Department is developing the Heads of the Adoption (Information and Tracing) Bill, and work on the Heads of that Bill is nearing completion. It will set out the information to be provided and circumstances in which it can be provided for past and future adoptions.

Officials in my Department are exploring all options with a view to balancing the needs of all stakeholders in this sensitive and complex and very personal matter. While I want to provide adopted people with as much information as possible about their identity, birth parents’ constitutional right to privacy must also be protected in this legislation.

The Heads will provide access to records for birth parents and adopted persons in so far as is possible in line with legal advices. I am proposing as progressive an approach as is possible within the significant legal and operational complexities which arise in giving effect to this objective.

The proposed legislation will provide for, inter alia,

Placing the National Adoption Contact Preference Register on a statutory basis

Arranging for the management of Adoption Records

Setting out the information to be provided and circumstances in which it can be provided both for retrospective and prospective adoptions.

I know that there are many people affected by adoption who are keen to see this legislation progress at the earliest opportunity, and I share that view. However, I am also concerned that we get it right. This is a complex piece of legislation, which must strike the right balance in respecting the rights of all of those involved. Regular and ongoing contact is maintained between my Department and the Office of the Attorney General in that regard.

It is my intention to have the General Scheme and Heads of Bill finalised as soon as possible and submitted for the consideration of Government, in advance of referral to the Oireachtas Committee on Health and Children.

In parallel, I have requested officials to commence an examination of operational arrangements for the preservation of, and access to, adoption records both to secure existing service provision and to make ready for any proposed new legislation.

The Adoption (Identity and Information) Bill 2014, introduced by Senators Power, van Turnhout, and Healy Eames, was passed by the Seanad on 19th November 2014 and that the draft Bill is at second stage in Dáil Éireann.

My Department has considered the draft Bill and notes that there is much to be commended in the draft Bill and, in relation to the areas of concern that it addresses, it is very much in line with the tenor of the draft Bill being prepared in my Department. On this basis I did not oppose the Bill. However the Private Members Bill differs from that being prepared by my Department in that it does not differentiate between prospective and retrospective adoptions. In that respect, it does not fully address the complex constitutional issues that arise in relation to the provision of identifying information to those, and about those who were adopted in the past.

The Bill has been fully reviewed as part of the ongoing work of the drafting of the proposed Bill on Adoption (Information and Tracing).

Given the new Article 42A of the Constitution of Ireland, will the Minister now conduct a law audit relevant to children to determine where gaps exist in full implementation of the United Nations Convention on the Rights of the Child and bring in a comprehensive Children’s Rights Bill.

Article 42A provides an enhanced general visibility for the rights of children under the Constitution. More generally, the new standard has the capacity to influence the approach to legislation beyond what is required by the letter of the new constitutional provision. The interpretation of the existing statute law is now subject to the new constitutional requirements and this will, no doubt, be reflected in jurisprudence in both public and private law in the years to come.

At the time the wording of the then proposed thirty-first amendment of the Constitution was published by the Government, there was a commitment to bring forward important amendments in adoption law. In order to fully inform consideration by the people of the constitutional change being put forward for their decision, the Government published the General Scheme of a proposed Adoption (Amendment) Bill 2012 which would flow from implementation of the change. With the thirty-first amendment now standing as part of the Constitution, in the form of the new Article 42A, my Department will proceed with arrangements to submit the promised Adoption (Amendment) Bill for consideration by the Oireachtas.

Specifically the amendment sets certain standards relating to determining the views and best interests of children in specified proceedings which both comprehend existing provisions and require that all future legislation must comply in the areas concerned. The Government has also provided potent examples of this in the inclusion of provisions relating to the views and best interests of the child in the Child and Family Agency Act 2013 and the Children and Family Relationships Act 2015.

My Department has a number of other proposed legislative initiatives in train that aim to promote the rights and welfare of children. These include the Children First Bill, 2014 to strengthen fundamental aspects of the child protection system which is currently before the Oireachtas; the Child Care Act (Amendment) Bill, to strengthen the legislative provisions for aftercare which is currently being drafted; and work is continuing on the Heads of Bill for the Adoption (Information and Tracing) Bill. I also mention in a separate reply to Senator Van Turnhout, that my Department is working on policy proposals for significant statutory reform of provisions relating to Guardians ad litem under the Child Care Act 1991.

I note that there is a major and wide-ranging initiative underway to advance the rights of children on a cross-government basis. I refer to the on-going implementation of Better Outcomes, Brighter Futures: the National Policy Framework for Children and Young People 2014-2020, which is demonstrably rooted in the values and principles of the United Nations Convention on the Rights of the Child. These values and principles will continue to guide the implementation and monitoring of Better Outcomes, Brighter Futures.

This universal strategy, covering all aspects of children’s lives, is a challenging and highly-focused whole-of-government undertaking. Delivery of the 163 commitments set out in the strategy will result in better outcomes for children right across the spectrum of State inter-actions with the child and his or her parents and family. Along with the legislative programme, these are the mechanisms by which the implementation of the UN Convention on the Rights of the Child is being advanced.

A further important underlying process relevant to the question raised concerns the examination of Ireland by the United Nations Committee on the Rights of the Child which is scheduled to take place next January. This provides a basis for engagement between my Department and other Departments of Government, preparatory to the meeting with the Committee, on issues it will raise regarding the State’s discharge of Ireland’s obligations as a party to the Convention.

Can the Minister confirm whether the blueprint set out in the 2009 Children Acts Advisory Board Report “Giving a voice to children’s wishes, feelings and interests” for a properly funded Guardian Ad Litem agency in Ireland forms part of the reform promised for the Guardian Ad Litem services in proceedings under the Child Care Act 1991? And can the Minister outline his plans in this area and a timeline for implementation?

Guardian ad litem services, under the provisions of the Child Care Act 1991, are currently organised and provided on an unregulated and ad hoc basis and, in the absence of extensive and fundamental reform, the service will not be sustainable into the future. The service now incurs an annual spend of over €16 million, and needs to be grounded as a consistent, accountable and sustainable national service. My Department is currently preparing policy proposals to achieve this objective.

A ‘root-and-branch’ reform is envisaged. Work on the policy proposals is being informed by a number of considerations and sources of information, including work done by the former Children Acts Advisory Board. The objective is to put in place a comprehensive legislative basis for the delivery of a high quality and sustainable service, on a national basis.

The reforms must ensure the best interests of the child, the centrality of the courts and the independence of guardians ad litem, but must also put in place a nationally managed service that is cohesive, accountable and sustainable. In Ireland, as in other jurisdictions, the service is subject to increasing demand and finite resources. I am determined to achieve best possible use of the substantial level of funding that has already been allocated to this area.

Reflecting elements identified by the Children Acts Advisory Board, proposed statutory arrangements will aim to address such matters as guidance as to circumstances for appointment, the qualifications that will be required for appointment, a well-defined role and responsibilities for the guardian ad litem, their legal status in proceedings, and legal representation. The reforms will take full account of the importance of listening to the views of children in relation to their own future.

My Department is well advanced in its examination of all aspects of reform of the guardian ad litem service. It aims to have the necessary policy proposals completed as soon as possible and, subject to Government approval for same, to proceed immediately to the preparation of Heads of legislation.